45 Ind. App. 293 | Ind. Ct. App. | 1910
Appellees, as resident taxpayers, instituted this suit to enjoin appellant Campbell from drawing from appellant hank, and to enjoin appellant bank from paying to Campbell, the sum of $400, which appellees averred had been wrongfully allowed and paid to appellant Campbell by the 1own of Rochester, and by him deposited in appellant hank.
The complaint is grounded upon the alleged void action of the town board in allowing the claim upon which the money was paid. The bases of this charge are twofold: (1) That the claim was founded upon a void contract, having been made with an officer of the town; (2) that the claim was allowed without its being itemized, verified and filed five days prior to its allowance.
“Corporation of Rochester, Indiana. To C. C. Campbell, Dr. To legal services in the case of Town of Rochester v. The Rochester Electric Light Company and two cases of Rochester Electric Light, Heat and Power Company v. Town, $400. ’ ’
That thereupon the clerk issued to him a warrant of said town to the treasurer thereof, who in turn gave Campbell a check on appellant bank for the same in said amount; that said money is now on deposit in said bank, subject to the cheek of said Campbell; 'that Campbell has no property subject to execution out of which any judgment for said money can be satisfied, and unless the withdrawal or payment of said sum by or to said Campbell be enjoined the money will be lost to said town. Prayer for injunction and return of the money.
Section 237 of an act concerning municipal corporations (Acts 1905, p. 219, §8891 Burns 1908) reads as follows: “It shall be unlawful for the common council of any city or the board of trustees of any town, or any officer or board of either of such corporations, to allow any claim against such city or town, or to order the issue of any warrant for the payment of money by any such corporation, except at a session of such common council or board, unless expressly authorized by law so to do; and no clerk or other officer of any city or town shall draw any warrant in favor of any person until so ordered and allowed, unless authority so to do is given in this act. No such claim shall be allowed until duly itemized and verified, and filed in the office of the clerk and placed upon the claim docket at least five days before the session at which the claim is to be allowed. It shall be the duty of such clerk to enter such claim upon such docket, when filed, stating the name of the claimant, the amount claimed and for what, and the date of filing. When the
3. The board of trustees of an incorporated town has only statutory power, and can perform its functions only in the statutory way. Zorn v. Warren-Scharf, etc., Paving Co. (1908), 42 Ind. App. 213, and cases cited; Moss v. Sugar Ridge Tp. (1903), 161 Ind. 417.
What we have here said in reference to the complaint disposes of the question raised on the ruling on the demurrer to appellants’ answer, since the answer specifically admitted that the claim was presented and allowed, as averred in the complaint. This being true, the averments of good faith and other extrinsic matters are no defense to the action. The statute we are here considering is a salutary one, enacted for the protection of the public against scheming and unscrupulous officers, as well as a protection to honest officers and employes of a town, by affording means and opportunity for investigating each claim before it is allowed. It was enacted to prevent such hasty action as is here shown. Whether the town owed appellant Campbell the money does not affect the question. He was not entitled to have his claim paid in this way, and, as town attorney, he violated the express provisions of the statute in thus receiving it. Under such circumstances, he has no title to the money thus received, or right to retain it.
Judgment affirmed.